Protest Decisions

IN RE: TYRONE UHRYNCHUK, MITCH CHAMBERS, DOUGLAS MACDOUGALL, KEITH KENNEDY, DOUG PAYETTE, GURNAM JOHAL, DAVE ANGUS, MIKE LEVINSON, GENE WIRCH, GARY WEST, DON DOERKSEN, RAYMOND ZIGMONT and DON MCGILL
Eligibility Decision 2001 EAD 151
Issued: February 8, 2001
OEA Case Nos.: E011812CA, E011814CA, E011813CA, E0129110CA, E012919CA, E012918CA, E012917CA, E012916CA, E012915CA, E012914CA, E012914CA, E012913CA, E012912CA, E012911CA

See also Election Appeals Master decision 01 EAM 38 (KC)

On January 17, 2001, Local 213 held its nomination meeting for delegate and alternate delegate elections. On January 18, 2001, Gary West, a Local 213 member, filed a protest with the Election Administrator challenging the eligibility of Tyrone Uhrynchuk to run as a delegate. That same day, Doug Payette, a Local 213 business agent, filed two protests challenging the eligibility of Mitch Chambers and Douglas MacDougall to run as delegates.

On January 26, 2001, Tyrone Uhrynchuk filed an eligibility protest challenging the eligibility of members Don McGill, Raymond Zigmont, Don Doerksen, Gary West, Gene Wirch, Mike Levinson, Dave Angus, Gurnam Johal, Doug Payette, and Keith Kennedy, all local union officers and business agents as well as candidates for delegate (or, in the case of Mr. Kennedy, alternate delegate) on the McGill's Unified Members slate.

Election Administrator representative Lois M. Tuttle investigated this consolidated protest.

In order to be eligible to run for delegate or alternate delegate to the IBT International Convention, a member must be in continuous good standing with her local union, with her dues paid to the local union for a period of 24 consecutive months prior to the month of nomination with no interruption in active membership due to suspensions, expulsions, withdrawals, transfers or failure to pay fines or assessments. Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), Article VI, Sec. 1(a)(1).

I. Eligibility of Tyrone Uhrynchuk

Mr. Uhrynchuk's TITAN record shows that he is an employee of Tree Island Steel Industries, Ltd., and a member on dues checkoff. From January 1999 through October 2000, his employer did not timely transmit dues to his local. On November 9, 2000 Mr. Uhrynchuk paid a total of $114, which paid three months' worth late dues (August through October 2000), plus three more months' worth of dues (November 2000 through January 2001).

Under Article X, Sec. 5(c) of the IBT Constitution, all members are responsible for paying their dues to the local on or before the last business day of the current month. Any member failing to pay his dues at such time shall not be in good standing for that month. However, a member on dues checkoff shall not lose good standing if his employer fails to make a proper deduction during any month in which the member has earnings from which dues could have been deducted.

Mr. Uhrynchuk states that he was injured on the job on December 13, 1998, when he fell off a carrier. From that time on, he claims that he was out of work until late March or early April 1999. He was on workers' compensation while he was out of work. He went back to his usual job as a shipper-receiver until he requested an accommodation. He was then given a job as a janitor until July 2000. On July 10, 2000, Mr. Uhrynchuk filed a grievance with his union claiming that his employer was failing to accommodate him. From then on, he was given different jobs until he was reinjured in September 2000. He was then taken out of the plant in mid-September 2000, when his employer told him that there was no suitable work. He has not worked since that time, although he had filed a "failure to accommodate" claim with his union. That claim is still pending.

According to Sandy Cornell of the Tree Island payroll department, Mr. Uhrynchuk had sufficient income to pay dues for all months within the eligibility period except for January through May 1999, August 2000, and October 2000. (The Election Administrator representative did not ask about the months of November and December 2000, since Mr. Uhrynchuk had timely paid dues for these months on a cash basis.) For the period January through early May 1999, Mr. Uhrynchuk was not working at all and received only workers' compensation (which is not income from his employer). On May 5, 1999, Mr. Uhrynchuk came to work in a "work hardening program," under his workers' compensation program; however, he still did not collect any income from his employer. He did not begin collecting wages from his employer until June 20, 1999. In August 2000, Mr. Uhrynchuk was working at the company through a "work hardening program" but was collecting only workers' compensation, as opposed to income from his employer. In October 2000, Mr. Uhrynchuk was not working at his company at all and was receiving only workers' compensation. Mr. Uhrynchuk did receive a check from his employer on October 31, 2000, but that check was for one days' worth of statutory holiday pay in September 2000.

Mr. Uhrynchuk claims that between January through May 1999, he attended various grievance, arbitration, management, and safety committee meetings in his capacity as a chief shop steward, for which he either received pay from Tree Island Industries or was entitled to receive pay. Specifically, he claims that on January 12, 13, 18, and 25 he attended an arbitration meeting, grievance meetings, and a management meeting respectively; on February 4, 17, and 18 he attended grievance meetings; on March 2 he attended a grievance meeting and on March 24 he attended a Central Safety Committee meeting; on April 22 he attended a grievance meeting and on April 27 he attended a union management meeting; and on May 31, 1999 he attended a grievance meeting. Mr. Uhrynchuk did not provide any records showing that he received income for attending these meetings, however. Ms. Cornell checked the company's records and could find no time cards or any other records indicating that any pay was ever given to, or requested by, Mr. Uhrynchuk for his attendance at these meetings.

Sheila Hogan, the local's office coordinator, checked the local's records and made inquiries with Tree Island, but could discover no claim for lost-time wages made by Mr. Uhrynchuk for any of the above-mentioned months. According to Raymond Zigmont, the local's president, Mr. Uhrynchuk could not in fact have obtained any income for lost-time wages from his employer so long as he was collecting workers' compensation, as he was during the applicable months.

Based on this evidence, we find that Mr. Uhrynchuk did not request or receive any income from his employer during the months January through May 1999 from which dues could have been deducted. We find that Mr. Uhrynchuk also received no income from his employer for the months August and October 2000 from which dues could have been deducted, but leave open the possibility that he might obtain a resolution to his "failure to accommodate" claim which would attribute income to the months in question.

Therefore, the Election Administrator GRANTS the protest against Mr. Uhrynchuk and finds him INELIGIBLE to run as a delegate because of his untimely payments of dues for January through May 1999.

II. Eligibility of Mitch Chambers

The TITAN record shows that Mr. Chambers was an employee of Mantane Contruction Products Limited and a member on dues checkoff. The TITAN record shows late payments for the entire period between January 1999 through December 2000. It also reflects that for a number of months (August through November 1999), Mr. Chambers was responsible for paying his dues on a cash basis. It shows that he paid his dues for these months late on December 2, 1999.

According to Randy Sadler, Mantane's office manager, Mr. Chambers was out on a disability claim and had no income from which dues could have been deducted during the period August through November 1999. Mr. Chambers claims that he paid his dues for these months by check as early as November 29, 1999, as opposed to December 2, 1999, as reflected in the TITAN record. Even assuming this to be true, Mr. Chambers would still have paid his dues late for the months of August, September and October 1999, when he agrees that he was receiving no income from which his dues could have been deducted.

Therefore, the Election Administrator finds Mr. Chambers to be INELIGIBLE to run as a delegate.

III. Eligibility of Douglas MacDougall

The TITAN record shows that Mr. MacDougall was an employee of Tree Island Industries, Ltd. who authorized his employer to make dues checkoff deductions to his local. It reflects that between the December 1999 through September 2000, while he was out on a work-related injury and receiving no income, Mr. MacDougall was responsible for paying his dues on a cash basis. Further, it shows that Mr. MacDougall made late cash payments for the months of December 1999, January 2000, February 2000, April 2000, May 2000, and August 2000.

Mr. MacDougall does not dispute that he made late cash dues payments during the months in question.

Therefore, the Election Administrator finds Mr. MacDougall to be INELIGIBLE to run as a delegate.

IV. Eligibility of Don McGill, Raymond Zigmont, Don Doerksen, Gary West, Gene Wirch, Mike Levinson, Dave Angus, Gurnam Johal, Doug Payette, and Keith Kennedy

a) Timeliness

Under Article XIII, Sec. 2(b), pre-election protests, including protests regarding a member's eligibility, must be filed "within two working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protest shall be waived." While the court-appointed Election Officers of past elections have not treated time limits as an absolute jurisdictional requirement in general protest cases, they have afforded little leeway in the case of late-filed eligibility protests, given the strict deadlines under which posting requirements, ballot printing and mailing schedules must be met. We have followed the rulings of Election Administrator Quindel finding eligibility protests untimely where they have been filed even one or two days past the date at which the protester "knew or reasonably should have known" of the action being protested. See Daly, 2001 EAD 141 (February 6, 2001), citingMurdoch, E123 (March 18, 1996), Milne, E71 (January 31, 1996), and Mantucci, E24 (January 22, 1996).

Mr. Uhrynchuk does not contest that on January 17, 2001, the date of the nomination meeting, he knew of the nomination of the ten candidates which he named in his protest. However, he argues that his eligibility protest was timely because the "action being protested" was his January 25, 2001 discovery of a memorandum relating to the eligibility of the ten candidates rather than the nomination of the candidates itself.

We reject Mr. Uhrynchuk's position. In the 1996 election cycle, Election Officer Quindel specifically held that the definition of the "action being protested" in the context of eligibility protests is not the date at which a protester learns of circumstances arguably affecting a candidate's eligibility, but rather, the date at which the protester learns of the candidate's nomination. See Murdoch, E123 (March 18, 1996), p. 2. Thus, Election Officer Quindel generally looked to the date at which a protester "knew or reasonably should have known" of a candidate's nomination in determining whether an eligibility protest was filed timely. See also Milne,supra; Mantucci, supra; and Stansburge, E99 (February 15, 1996). On these facts, we will follow this case law.

Therefore, the Election Administrator finds Mr. Uhrynchuk's protest was filed UNTIMELY and thus DENY his protest against the ten named candidates. Those candidates are therefore ELIGIBLE to run as delegates or, in the case of Mr. Kennedy, as an alternate delegate.

b) Merits

Even had Mr. Uhrynchuck's protest been filed timely, the ten named members would still be eligible. Mr. Uhrynchuk claims that the ten named local union officers and business agents are ineligible to run as candidates for delegate or alternate delegate because a November 17, 2000 memorandum written by the local's secretary-treasurer, Don McGill, showed that over a period of twenty-one months, the local union had been deducting a lesser amount of dues from its local union officers and business agents than they should have been paying under the applicable rate. The memorandum showed that on November 17, 2001, Mr. McGill advised the local union officers and business agents that the local would be correcting this discrepancy through a checkoff dues adjustment of $210, to account for a difference of $10 over the past 21 months, to be taken out of their first pay period early in the month of December 2000.

Mr. Uhrynchuk argues that the local union officers and business agents should be declared ineligible either because of the very fact that the incorrect amount of dues had been deducted from their pay during many months within the eligibility period, or because the local union (in the guise of Mr. McGill) took too long to correct the problem, since he first became aware of the discrepancy through an August 2000 audit.

We disagree on both bases. First, the Election Administrator rejects any contention that local union officers and business agents on checkoff should be penalized because of a local union dues collection mistake of which they were ignorant. See Farrell, 2000 EAD 49 (November 20, 2000), p.3. Indeed, Mr. Uhrynchuk makes no allegation, and has presented no evidence, that any of the local union officers or business agents were aware that they were being charged an insufficient rate of dues until, at the very earliest, the audit of August 2000.

Second, we find that Mr. McGill did seek to address the problem in a reasonable time after it was first brought to his attention in August 2000. In fact, he contacted the Election Administrator for advice on how to correct the problem by letter dated October 5, 2000. The November 17, 2000 memorandum and actions taken pursuant to its instructions, were, in fact, the product of Mr. McGill's discussions with Election Administrator representative Lois Tuttle in mid-November 2000 as to how he could best notify local union officers and business agents of the dues collection problem and to remedy it.

Therefore, the Election Administrator DENIES Mr. Uhrynchuk's protest on its merits and finds all ten named candidates ELIGIBLE to run as delegates and as an alternate delegate.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for that appeal, and shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon the parties listed above, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street, N.W., 10^th Floor, Washington, D.C. 20005, Facsimile (202) 454-1501, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

Gwen Randall, OEA Regional Director for Canada

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